Kara Sears
In South Africa, common-law marriage, also referred to as cohabitation, is not recognised as a legal relationship. This means that cohabiting partners do not have the same rights and protections as married couples. While many South Africans believe that living together for a certain period of time constitutes a common-law marriage, this is not the case. To protect their rights and obligations, cohabiting couples can enter into a cohabitation agreement, which can be verbal or written. This agreement can specify individually and jointly owned assets and property, as well as outline how financial matters and debts will be handled during the relationship and in the event of a separation. While cohabitation is not recognised as a legal relationship in South Africa, there are certain laws that do provide protections for cohabiting partners, such as the Domestic Violence Act and the Medical Schemes Act.
Characteristics of a common-law spouse in South Africa
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Common-law marriage is not recognised in South Africa. |
| Rights of cohabitants | Cohabitants do not have the same rights as married couples, but can be protected through a cohabitation agreement. |
| Inheritance rights | Cohabitants do not have automatic inheritance rights, but can inherit if there is a valid will in place. |
| Parental obligations | The law does not distinguish between married and unmarried parents regarding their obligation to maintain children. |
| Financial matters | Cohabitation agreements can outline how financial matters, such as expenses, investments, and debts, will be handled during the relationship and in the event of separation. |
| Property ownership | Cohabitation agreements can specify individually and jointly owned property and how jointly owned property will be divided in the event of separation. |
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What You'll Learn
Common law marriage is a misconception
Common-law marriage is a misconception in South Africa. While common-law marriage is applicable in many legal systems around the world, it is not a recognised form of marriage in South Africa. South African legislation provides for various types of marriages, including civil marriage, customary marriage, religious marriage, or civil union. However, none of these legislations incorporate the recognition of common-law marriages.
Many South Africans believe that by living together for a certain period, they enter into a common-law marriage and become common-law husband and wife. This is not the case. The South African legal system currently does not provide the same rights and protections to cohabiting partners as it does to married couples. Cohabitation, also referred to as a domestic partnership, is not recognised as a legal relationship by South African law. There is no law that regulates the rights of parties in a cohabitation relationship. Because their relationship is not recognised by the law as a marriage, the rights and duties that marriage confers do not apply.
The law as it stands is unsatisfactory, as it does not place cohabitants on the same footing as partners in a marriage or civil union. However, the South African law on cohabitation will soon be rectified by the draft Domestic Partnerships Bill that was published in January 2008. Until the Bill is adopted into legislation, the status of cohabitants in South Africa will remain significantly different from spouses in a marriage and partners in a civil union.
While cohabitants do not have the same rights as married couples, the South African courts have, on occasion, come to the assistance of couples by deciding that an express or implied universal partnership exists between them. A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. A cohabitation agreement can be entered into verbally or in writing to protect the rights and obligations of the couple during and after the relationship. It is recommended that such an agreement be concluded in writing and signed. The agreement can include aspects regarding any joint property owned by the couple, such as a house, and how it will be divided in the event of separation. It can also address financial responsibilities towards assets or one another in the event of separation. Importantly, even with a cohabitation agreement, the right to inherit under the Intestate Succession Act is not automatic. A cohabitant can only inherit if a valid will is in place.
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Cohabitation agreements
In South Africa, cohabitation, or common-law marriage, is not recognised as a legal relationship. Therefore, there is no law that regulates the rights of parties in a cohabitation relationship. This means that cohabitants do not have the same rights and duties as married couples, irrespective of the duration of their relationship.
Many people mistakenly believe that living together for a certain amount of time results in a common-law marriage, which grants them certain benefits. However, this is not the case. The only way for an unmarried couple to protect their rights and obligations is by entering into a cohabitation agreement.
A cohabitation agreement is a contract that outlines the rights and obligations of each party in a relationship. It can be entered into verbally or in writing, but it is recommended that it be concluded in writing and signed. This agreement can be made at any time during the relationship and can be customised to suit the unique relationship dynamics of each couple.
The agreement should clearly state that it does not constitute a marriage and should cover aspects such as joint property, custody arrangements, child support, inheritance, wills, and estate planning. It can also include provisions for financial support during and after the relationship, as well as the division of assets in the event of a breakup.
It is important to note that a cohabitation agreement is not enforceable against third persons. In the absence of such an agreement, each party is only entitled to retain the property they purchased and own.
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Universal partnerships
In South Africa, common-law marriage, or cohabitation, is not recognised as a legal relationship. This means that cohabitants do not have the same rights and protections as married couples or those in a civil union. However, the concept of a "universal partnership" has been recognised by the courts in certain instances.
A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. This means that even without a formal marriage or civil union, a couple may be recognised as universal partners and thus be entitled to certain rights and protections.
For example, in the case of L.L v C.H NO and others [2023], the applicant sought a court declaration of their relationship as a universal partnership after their partner passed away without a will. The applicant was initially unable to inherit anything, but the court ultimately recognised the universal partnership and entitled the applicant to half of the deceased's estate.
While universal partnerships can provide some legal protection for cohabitants, it is not a substitute for a formal marriage or civil union. Cohabitants who are not in a universal partnership may still protect themselves by entering into a cohabitation agreement. This agreement can be verbal or written and should outline the rights and obligations of each party, including financial arrangements and the division of assets in the event of separation.
It is important to note that the law in this area is evolving, and the draft Domestic Partnerships Bill, published in January 2008, aims to rectify the current lack of legal protection for cohabitants in South Africa.
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Rights of cohabitants
Cohabitation, or living together without a marriage certificate, has become more common in South Africa in recent years. However, cohabitation is not recognised as a legal relationship in South Africa, and cohabitants do not have the same rights and protections as married couples.
Cohabitants in South Africa do not have automatic inheritance rights, and if their partner dies without a will, they do not have the right to inherit their belongings. In the absence of a will, the surviving cohabitant may have to go through a long and costly legal process to claim their share of the estate.
Cohabitants also do not have automatic maintenance rights and cannot claim financial support from their partner's estate if they pass away. Additionally, South African banks do not usually allow joint accounts for cohabitants, and debts or loans are the responsibility of the account holder.
To protect their rights and interests, cohabitants in South Africa can enter into a cohabitation agreement, also known as a domestic partnership agreement or cohabitation contract. This agreement can be verbal or written but is recommended to be written and signed. It should outline the rights and responsibilities of each partner, including how they will manage finances and property during and after the relationship.
In some instances, cohabitants may be able to claim a share of their partner's assets by proving the existence of a universal partnership. A universal partnership exists when parties act like partners in all material respects without entering into a partnership agreement. However, proving the existence of a universal partnership can be challenging, and it is always recommended to have a valid will and cohabitation agreement in place to protect one's rights.
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Inheritance and maintenance
Cohabitation, or common-law marriage, is not recognised as a legal relationship in South Africa. Consequently, cohabitants do not have the same rights as married couples, including the right to inherit from their partner or claim maintenance.
In the past, common-law marriages were labelled as extramarital cohabitation. Men and women living together do not have the same rights and duties as married couples. The absence of legal recognition as a marriage means that the rights and duties conferred by marriage do not apply to cohabitants, regardless of the relationship's duration.
However, there have been legal strides towards greater recognition and protection of cohabitants' rights. In the Bwanya case, the Constitutional Court recognised the rights of surviving partners in permanent life partnerships to inherit and claim maintenance. This underscored the necessity of protecting all forms of familial relationships. The court emphasised that all categories of families in South Africa deserve legal protection.
The court also found that the exclusion of opposite-sex couples from the Intestate Succession Act (ISA) and the Maintenance of Surviving Spouses Act (MSSA) unfairly discriminated against them. As a result, the ISA and MSSA have been amended to include opposite-sex couples and grant them the same rights as married couples concerning inheritance and maintenance.
Despite these advancements, cohabitants should still safeguard their rights through cohabitation agreements, as the existing legal framework does not provide comprehensive protection compared to marriage or civil unions. A cohabitation agreement can be verbal or written, but it is recommended to have it in writing and signed. The agreement should clearly set out the rights and obligations of the couple, including aspects of any joint property.
Universal partnerships may also provide legal protections, such as the right to inherit from a partner, claim maintenance, and make medical decisions on their behalf. Couples should carefully consider their options and choose an arrangement that fits their needs and goals.
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Frequently asked questions
There is no common-law marriage in South Africa. Many people believe that living together for a certain amount of time means you are automatically married "in the eyes of the law". This is not true, and the law does not recognise cohabitation as a formal legal relationship.
You can enter into a cohabitation agreement, which can be verbal or written, but it is recommended that it is concluded in writing and signed. This agreement should set out the rights and obligations of each party, and can include details on jointly owned property, financial arrangements, and what would happen in the event of separation.
If there is no valid will in place, the surviving partner will not automatically inherit under the Intestate Succession Act. However, a surviving partner may claim compensation if their partner died as a result of injuries received during employment, if they were living as 'husband and wife' at the time of death.
